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Net Neutrality - Key Developments In India

Net Neutrality can be broadly described as principle that all electronic communications passing through a network should be treated equally1. The term was coined by a Columbia University professor Tim Wu in 2003 and its definition has been debated across the globe for more than a decade now. Net Neutrality is necessary for development of the Internet. The United States and European Union have firmed up their positions and models for implementing and ensuring free Internet. India too is not far behind although it has dived into this debate much later. Both Department of Telecom (DoT) and Telecom Regulatory Authority of India (TRAI) have been working on various aspects of net neutrality since 2015. In this context it will be useful to study the developments that have taken place in India so far.

The most recent development is release of ‘Pre-Consultation Paper on Net Neutrality’ on 30 May 2016 (Net Neutrality Pre Consultation Paper) by TRAI and as a result this issue has been dragged to mainstream audience once again. Although the contours of pre consultation are more focussed on net neutrality this time, let us see some of the past developments on this issue.

TRAI had issued a consultation paper on ‘Regulatory framework for Over the Top services’ in March 2015, where comments on network neutrality were invited for the first time. The consultation paper received more than a million responses from stakeholders and the issue was hotly debated. A committee comprising of various stakeholders (like application providers, telecom service providers (TSP), civil society and multi - stakeholder advisory groups) was constituted by DoT to examine the issue of net neutrality. This DoT Committee submitted its report in mid-2015. The DoT Committee report seems to have acknowledged in letter the need for net neutrality. The report is noteworthy for suggesting that all TSPs providing the Internet should follow core principles of net neutrality and traffic management should be subject to compliance with the identified core principles.

It may be important to mention that TRAI has dealt with tariffs for data services separately, which is one of the core principles of net neutrality. TRAI in early 2016 released ‘Prohibition of Discriminatory Tariff for Data Services Regulations, 2016’ (Regulation on Discriminatory Tariff) after open house discussions on its consultation paper on this topic were concluded. The Regulation on Discriminatory Tariff prohibited TSPs to offer or charge discriminatory tariffs for data services on the basis of content. However, this regulation is not applicable on tariffs for data services over closed electronic communication networks. The Regulation on Discriminatory Tariff partially addressed the issue of introduction of Airtel Zero and Free Basics by Bharti Airtel and Facebook respectively. TRAI on 19 May 2016, released another consultation paper on “Free Data” as its earlier consultation paper on discriminatory tariffs, did not address the question related to possible alternate solution for addressing the issue of providing free data access to users.

The Regulation on Discriminatory Tariff and the issue for consideration under Free Data consultation paper may appear contradictory at a first glance. However, practically it may be possible to prohibit discriminatory tariffs on the basis of content and at the same time promote schemes which provide access to free data by consumers through a platform which is TSP agnostic. TRAI has discussed some of Free Data models in the consultation paper where schemes similar to subsidy payment for domestic LPG connection, wherein user pays for the connection and then the Government pays the subsidy directly into user’s bank account are deliberated upon. According to TRAI this model can be replicated in telecom sector through a TSP agnostic platform as well, where a free recharge is credited to the account of the user for accessing the Internet depending on real time data consumption.

Going back to the Net Neutrality Pre Consultation Paper, TRAI Chairman R S Sharma, informed in an interview2 that the reason for floating a pre-consultation paper is to be doubly sure that nothing on this important topic is missed out and within a month a full consultation paper on various aspects of net neutrality can be expected.

The Net Neutrality Pre Consultation Paper is a focused paper on issues related to net neutrality and aims to formulate a comprehensive policy on it. It has sought public views on various aspects such as core principles of net neutrality in Indian context and besides other issues intends to explore traffic management practices that may be reasonably required to be deployed by TSPs in light of increasing Internet usage by consumers. The Paper recognizes certain practices to be unreasonable interference with the Internet traffic by a TSP such as:

Blocking of content on the Internet

Slowing or ‘throttling’ the Internet speed

Preferential treatment of any content on the Internet

Discriminatory tariff for data services based on content and

Inspection of content of data packets except for lawful requirements

However, the Paper also recognizes that owing to network congestion due to large volume of traffic that needs to be handled by TSPs, advanced traffic management techniques may potentially be required to be used by TSPs to protect the quality of consumer’s experience. Therefore, the Paper aims to strike a balance between competing interests.

The Unified License agreement executed between DoT and TSPs under section 4 of the Indian Telegraph Act, requires TSPs to ensure subscribers have unrestricted access to all content available on the Internet, subject to lawful restrictions. Any action by TSP to intentionally and arbitrarily apply restrictions will be in violation of the license agreement. However, since the subject matter is itself so vast, it is necessary to go deeper into the debate and understand what actions may be termed as reasonable interference and what may be termed as unreasonable restrictions.

Given the clamour surrounding the issue, TRAI is expected to utilise this opportunity to understand all issues related to this topic and recommend to DoT a regime which is comprehensive and neutral, keeping in mind the needs of all the stakeholders. Needless to say, TRAI has an arduous task of striking a delicate balance between the needs of all the stakeholders and it has commenced this journey by identifying the relevant issues which will provide a strong foundation to the final recommendations it makes to DoT.

The net neutrality debate is much more than a simple policy decision for DoT and TRAI’s role in recommending the framework will be an important task. The choices that will be made by TRAI and finally that may be adopted by DoT, will determine not only the architecture and market structure of India’s information systems (including m-commerce, content services and communication platforms), it may also have an impact on the Internet globally.

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